Stephen M. Johnson (Mercer University Law School) has posted Deregulation: Too Big for One Branch, But Maybe Not For Two (53 Seton Hall L. Rev. 839 (2023)) on SSRN. Here is the abstract:
When President Trump took office, he pursued an aggressive deregulatory agenda, with a particular focus on environmental regulation. The President deployed a mix of traditional tools, such as Executive Orders, guidance documents and policies, and rulemaking to suspend or reverse longstanding environmental regulations and policies. The Administration also utilized the Congressional Review Act as it had not been used before, and aggressively sought abeyances in litigation challenging disfavored rules and policies to advance its deregulatory agenda. In the short-term, its substantive deregulatory record was impressive.
Although President Trump’s short-term deregulatory record was impressive, his long-term record is not. What his efforts ultimately demonstrated is that deregulation by the Executive Branch without the support of Congress or the judicial branch is extremely difficult. Executive Orders and guidance documents that roll back environmental protections can be reversed with the stroke of a pen by an incoming President. Regulations that roll back environmental protections are more durable, as long as they are adopted in accordance with the procedures required by law and are consistent with the laws under which they are adopted. However, the Trump Administration frequently ignored those procedural and statutory limits, so his environmental rollbacks were upheld in court in only about 20% of the cases in which they were challenged, as opposed to the 70% validation rate that is the norm for other Administrations.
President Trump’s reliance on the traditional rollback tools did not yield long-term environmental deregulation and his deployment of new rollback tools (the Congressional Review Act and increased use of abeyances in litigation) may, paradoxically, make it more difficult for future Presidents to deregulate. After all, those tools can be used equally effectively to rollback deregulatory actions as to rollback regulatory actions.
While the Trump Administration’s failure to effect long-term environmental deregulation may demonstrate that it is extremely difficult for a President to deregulate without the support of Congress or the judicial branch, the Executive Branch may soon have a deregulatory ally in the judicial branch. Although federal courts repeatedly stymied President Trump’s environmental deregulatory efforts by enforcing traditional principles of administrative law and statutory law, the complexion of the federal judiciary is changing, as President Trump appointed 30% of the judges now serving in the federal appellate courts, targeting conservatives judges vetted by the Federalist Society for those appointments. In addition, over the past few terms, the Supreme Court has expressed increasing skepticism toward principles of deference to administrative agencies and appears poised to make significant changes to important principles of administrative law and statutory law that have limited the Executive Branch’s ability to dismantle environmental regulatory protections. If the Court arrogates to itself greater power to interpret environmental laws without according deference to the views of environmental agencies and maintains the conservative bent that has been reflected in recent opinions, Executive efforts to rollback, rescind or revoke environmental regulatory protections may be met with significant support in the judicial branch.